MEDICAL NECESSITY

Re: "Medical pot quagmire," Aug 23 editorial.

Your editorial on medical marijuana laws erroneously states the U.S Supreme
Court held "that there is no medical exemption to the federal controlled
substances act." The unnamed case you referred to is United States vs.
Oakland Cannabis Buyers' Cooperative and Jeffery Jones, decided May 14, 2001.

That decision held only that no implied medical necessity exemption exists
to prohibitions on manufacture and distribution of marijuana established by
the Controlled Substances Act, and that a district court could not thus
consider medical necessity when fashioning injunctive relief.

Simply stated, the court said medical necessity was not written into the
statute dealing with manufacture and distribution and courts could not read
into the statute what plainly was not there.

The common law defense of medical necessity is not available to someone
other than the person actually having the medical necessity. The defense
could not be used by a cooperative or other group claiming to distribute
marijuana to others in need.

It is important to note that this case was an injunction proceeding and not
a criminal prosecution where such a defense could be raised. It has been
observed by numerous legal scholars that the government, in all likelihood,
chose to seek an injunction rather than initiate a criminal prosecution in
order to avoid having a jury decide the case.

Second, while it is accurate to report that Asa Hutchinson, the new head of
the Drug Enforcement Agency, said he "has yet to see any research that
suggests the drug has any legitimate medical use," his vast ignorance of
the subject is a slender reed upon which to base your editorial opinion.

The fact is the DEA itself conducted two years of administrative review on
the subject and its own administrative law judge concluded it was
unreasonable, arbitrary and capricious for the DEA to stand between
sufferers of serious illnesses and the benefits of the drug.

The medical literature is replete with studies showing the beneficial
effects that prescribed use of marijuana provides for those suffering from
the effects of chemotherapy, multiple sclerosis, involuntary spasms and
wasting syndrome. Some of this research comes from the government itself,
some from the most prestigious medical organizations in the world.

John L. Kane Jr., Denver